Progress made on legal aid for the poor

FILE PHOTOMonroe County Public Defender Tim Donaher: The reform is "transformational."

A US Supreme Court ruling guarantees poor defendants the right to a government-provided attorney. But in New York, a patchwork system of public defender's offices has meant that the quality of representation that defendants get can depend entirely on the county their case is in.

Larger counties such as Monroe have full-time, fully staffed public defender's offices, complete with some level of support staff – though the attorneys still handle a staggering number of cases, well in excess of national caseload recommendations. Some smaller counties contract the work out to private attorneys, who have to balance poor defendants' cases with work for their other paying clients. The concern has been that some defendants may not receive adequate representation for those, and other, reasons.

An NYCLU-backed lawsuit, filed in 2007, centered on this problem. The case, Hurrell-Harring v. State of New York, argued that defendants in five New York counties – Ontario, Onondaga, Schuyler, Suffolk, and Washington – received inconsistent and inadequate representation. The state settled the lawsuit in 2014 and vowed to pay for efforts in those counties to cap attorney caseloads, provide for representation at defendants' first court appearances, increase support staff for attorneys, and generally improve the quality of representation.

Now, the state will make identical efforts for the public defender's offices in all of the other counties in New York. And lawmakers have promised that the state will pick up the tab.

As part of the state's 2017-18 budget, the state legislature approved a package of indigent-legal-defense reforms. The budget sets aside funding for the state's Office of Indigent Legal Services to develop standards such as caseload caps and quality of the legal services. The office will develop a plan for each of the counties to meet the promises of the state's Hurrell v. Harring settlement.

"With this legislation, New York is making clear that everyone has the right to justice under the law, not only those who can afford an attorney," NYCLU executive director Donna Lieberman said in a press release from the organization. "This reform goes a long way toward making sure poor defendants don't have to navigate the justice system alone."

Monroe County Public Defender Tim Donaher and his colleagues across the state have also praised the reform package.

"It's sort of transformational, to be honest with you," says Tim Donaher.

Donaher's office already took action on one of the reforms in 2014. It started making greater efforts to ensure that public defenders were present at new defendants' first court hearings.

But the budget doesn't guarantee the funding for the new services. The legislature and governor will be responsible for following through with the promise, which means funding to enact the new requirements could be the next battle, Donaher says.

The budget measures don't implement a state takeover of indigent legal defense services, nor do they provide full funding for county public defender's offices. County executives and legislators, public defenders, civil liberties groups, and some state lawmakers have pushed for the state to fully fund county public defender's offices.

Last year, Governor Andrew Cuomo vetoed legislation that would have required the state to assume costs for county public defenders' offices over a seven-year period. Proponents estimated that the bill would have cost $450 million, but Cuomo argued that it would cost much more.

The New York Association of Counties says it will continue to push for a state takeover of indigent defense costs, as do some statewide defenders associations. Donaher says counties are operating under tight budgets, due in part to the state-imposed property tax cap, which limits the resources available to public defender's offices. He, too, still advocates for a state takeover of indigent defense costs.